Wednesday’s Supreme Court argument in the Guantanamo detainee cases (Boumediene v. Bush and Al Odah v. United States) will presumably focus on the alternative review scheme Congress and the administration created in place of habeas corpus.Assuming the Guantanamo detainees are protected by the Constitution’s Suspension Clause (as I have argued they are), the question will then be whether review by the D.C. Circuit under the Detainee Treatment Act (DTA) of Combatant Status Review Tribunal (CSRT) findings is an “adequate and effective” substitute for habeas.It is difficult to take seriously the notion that the DTA-CSRT scheme is an “adequate” or “effective” substitute for anything, let alone for the centuries-old writ praised by Blackstone and Hamilton as the “bulwark” of individual liberty.

List the factors that make a hearing unfair and put them all together: that’s the CSRT on a good day.In brief, the CSRT relies predominantly on evidence a detainee cannot see; affirmatively prohibits the assistance of counsel; freely admits statements gained by torture and other coercion; and routinely refuses detainees’ requests to call witnesses or present exculpatory evidence.In addition, the CSRT’s panels of mid-level officers lack any structural guarantees of independence. All of the detainees had already been designated “enemy combatants” by the tribunal’s superiors, all the way up to the Secretary of Defense and the President. The CSRT disagreed with those determinations only on rare occasions (about 5 percent of the time).And, on several of those occasions, the tribunal’s superiors ordered “do-overs” until the tribunal reached the desired result.

The DTA makes it impossible to remedy the CSRT’s flaws. It limits judicial review to whether the CSRT followed its own rules and whether those rules satisfy the Constitution and laws of the United States (to the extent applicable). Exactly what DTA review means is the subject of separate litigation in the D.C. Circuit (Bismullah v. Gates).But one thing is certain: DTA review is confined to the CSRT record, and cannot supply the independent judicial fact-finding that habeas can.For that reason, the DTA-CSRT process will ultimately remain one of garbage in, garbage out.

In one sense, comparing this scheme with habeas corpus is unfair.The DTA-CSRT was never meant to provide an adequate or effective substitute for habeas. This fact alone should make a constitutional difference. When the Supreme Court previously suggested that the Suspension Clause might be satisfied by an “adequate and effective” substitute for habeas, it was considering the constitutionality of alternative review measures that Congress intended to be commensurate with habeas: post-conviction review for federal prisoners under 28 U.S.C. § 2255 in United States v. Hayman and under the D.C. Code (for D.C. prisoners) in Swain v. Pressley.Congress, however, intended DTA review of CSRT findings to be much more circumscribed than habeas, not commensurate with it.Unlike in Hayman and Swain, Congress did not intend to replicate habeas in another forum with the DTA. Rather, Congress set out to create an inferior process for a class of individuals it believed had no right to habeas corpus (or to anything else for that matter).Trying to make the DTA-CSRT into a substitute for habeas is like trying to fit a square peg in a round hole.

The government seeks to divert attention from the DTA-CSRT’s failings by invoking the idea of agency review.The DTA, the government reassures, merely adopts the familiar model of the modern administrative state: limited appellate review of agency fact-finding. But even assuming this model could pass constitutional muster for cases of indefinite executive detention, the underlying process would have to be full and fair – everything the CSRT is not.And, any suggestion that errors can be corrected on DTA review from a one-sided and non-adversarial CSRT process is a fantasy.Whether an agency model might suffice in another time and another place, it cannot replace habeas for these detainees, who have languished at Guantanamo for six years without a fair hearing, be it military, administrative, or judicial.

In a 2005 speech to the NSA, former Deputy Attorney General James Comey called for a commitment to “Intelligence Under the Law.” Comey explained why the United States must adhere to its legal obligations when gathering intelligence.Guantanamo presents another side of the problem: what to do when the United States has imprisoned people (without charge) based upon intelligence gained outside the law – in many cases through torture and other coercion.

In his insider account of the CSRT process, Lieutenant Colonel Stephen Abraham, a 26-year-veteran of military intelligence, demolishes any pretence that the CSRT could ever be part of a system of intelligence under law.The tribunals made decisions, Abraham says, based upon a haphazard collection of generic information that rarely related to the detainee in question and that “lacked even the most fundamental earmarks of objectively credible evidence.”In a subsequent declaration, Abraham explains how the CSRT had no ability, incentive, or means to assess the reliability or accuracy of the intelligence on which it was relying in the jerry-rigged process that has come to define the detention system at Guantanamo.

If the United States is to move towards the goal of “Intelligence Under the Law” (as it must do if it is ever to develop a rights-respecting national security policy), it needs to do more than gather intelligence lawfully. It must make certain that no individual is deprived of his liberty without a meaningful fact-finding process to test and to probe that intelligence so that mistakes are exposed and corrected.Both judges and lawyers must play an active role in that fact-finding process, the very role habeas corpus promises and that the DTA-CSRT precludes.

This assumes that foreign prisoners of war have a right to habeas corpus review for which the CSRT is a substitute. In reality, the petitioners are asking the Court to substitute habeas corpus review for the military status determinations made since the dawn of the Republic.

Feel free to point out a single instance in pre-constitutional British or American common law where habeas corpus has been used by a civilian court to determine whether a foreign prisoner held by the military was properly determined to be a POW.

Until you can do so, you are going to have a hard time claiming that you have pointed out how foreign prisoners of war have a right to habeas corpus review.

In contrast, I have offered precedent and treatises demonstrating that foreign captures designated as POWs by the military simply do not have habeas corpus rights or any other rights of a citizen to challenge that designation.

The court may render two entirely different decisions on the two cases. The facts in Al Odah closely match the Hamdi case. People were captured in or near an area of active combat with US forces, and the question asked is whether they are enemy combatants (members of the enemy army at war with the US). The CSRT was created based on an outline provided by the Court in Hamdi for a tribunal similar to the Geneva Article 5 tribunal that would determine this one question of fact. Given Hamdi, the Court seems likely to accept that the CSRT (with review by the DC Circuit) is adequate for making this determination.

However, in Boumediene individuals were arrested by the Bosnian police and turned over to the US. They were not in an area of active combat with the US and were not designated as enemy combatants or spies by the Bosnian military or courts. Given these facts, the Supreme Court should find that the government claims in this case do not meet a prima facie threshold for a claim of combatant status.

The problem here is that the definition of "enemy combatant" used by the government and CSRTs goes far beyond the generally accepted definitions (member of an army at war with the US, civilian engaged in combat with US forces, military spy) of the term. Persons who would not be regarded as "enemy combatants" under generally accepted international law would have a right to Habeas (as civilians or criminals) even though the US chose to classify them as "enemy combatants" under some domestic statutory extension to the commonly accepted term.

Splitting the two cases would also have the bonus of producing a result that nobody seems to be predicting. It reflects the courts prior tendency of rendering each decision so narrowly that the really big questions never get resolved. All the other pending cases would then be thrown up in the air with the two sides arguing that "this case is like al Odah" or "no, it's like Boumediene."

Jonathan Hafetz: The DTA-CSRT was never meant to provide an adequate or effective substitute for habeas.

It was meant to provide an "alternative" precisely so as to avoid any real right to habeas. If it actually did, in any meaningful manner, what habeas is supposed to do, there wouldn't be the need for this substitute. One need only list the differences to see what it is that they're so studiously trying to avoid, namely any "adverse" determination and any judgement that what they have done has been wrong in many cases.

This assumes that foreign prisoners of war have a right to habeas corpus review for which the CSRT is a substitute. In reality, the petitioners are asking the Court to substitute habeas corpus review for the military status determinations made since the dawn of the Republic.

al Qaeda has waged war in dozens of countries, but you will not find an active conventional battlefield in any of them.

Under your approach, if we captured a member of the 9/11 cell a day before the attacks, we could not hold and interrogate him as an enemy combatant involved in an attack on our country because the United States did not have any active battlefields.

Rather, we would have to treat him as a civilian criminal suspect complete with a right to silence and an attorney. After the terrorist got lawyered up, over 3000 would have died the next day as a result.

anderson, that is indeed BS.

Folks, this is not an intellectual exercise. This is real life and death policy making.

Mr. Hafetz complains that we are not giving our al Qaeda guests a fair chance to return to the battlefield. He is absolutely correct.

I'll wager that the vast majority of the American people do not want to give our al Qaeda guests a fair chance to return to the battlefield to interrupt the peace we have been enjoying for the past six years with more mass murder.

The issue is whether the Supreme Court will bow to the will of the People as expressed by both of our democratically elected branches of again turn what was supposed to be the least dangerous branch of our government into a threat to our lives.

Under your approach, if we captured a member of the 9/11 cell a day before the attacks, we could not hold and interrogate him as an enemy combatant involved in an attack on our country because the United States did not have any active battlefields.

"Bart" is of the opinion that we can hold anyone the maladministration terms "enemy combatants" without any substantive review of what they are, and abusively interrogate them as "necessary", nay, even torture them, if that's what it takes, to get any "intelligence" out of them that the preznit thinks he needs after he forgets to read his PDBs and NIEs. The "necessity" justification; time are perilous ... see, e.g., "Nürnberg".

I'd note that interrogation of POWs is allowed under the Geneva Conventions, as well as of suspected criminals under domestic criminal law. So I don't see this purported "need" for "intelligence" as being in any way a compelling reason to abandon our laws and treaties ... not to mention fundamental notions of human dignity and fair play.

Feel free to point out a single instance where the courts have opined that the recently coined and broadly defined Unlawful Enemy Combatant designation should be understood to be identical under the law to prior notions of battlefield combatant captures.

Until you can do so, there is ample space between prior examples of military detainees (e.g., Haitian boat people) who had access to habeas hearings in Article III courts and POWs captured on the battlefield who did not in which the Court can place an individual illegally captured by foreign police forces and handed over to the U.S. military after the foreign courts had ordered the individual to be released for lack of evidence of wrongdoing. Until you can do so, your presumption that the Executive's labeling as unlawful enemy combatants makes such persons detained by the military no different under the law from the detainees in your precedents and treaties simply begs the question.

Rasul rewrote the habeas corpus statute in a way Congress never intended ...

So says you. The court thought differently. I pointed that out. It appears to have gone 40,000 feet over your head.

... and compelled Congress to correct them twice through the DTA and MCA.

No. There was no compulsion there. No guns at the head. No fingernails pulled. No waterboarding. They changed the laws. The laws were as written, and they were amended.

We will see whether the Court will again act like a group of outlaws or recognize that Article I grants Congress plenary power to set rules for captures.

IC. The U.S. Spureme Court is a bunch of "outlaws". Glad we have your position settled. Then we can dispense with the notion that you're doing anything near to what is ordinarily considered "legal commentary" here.

BTW, such an assertion will not serve you in good stead at the Supreme Court Bar. Not that I think there's any chance you'd ever get there.

Folks, this is not an intellectual exercise. This is real life and death policy making.

This is a legal blog, not a forum for discussing the frequency for changing diapers.

You play the BMOB here with your "video war" veteran status, yet piss your pants at the slightest thing (may have occasioned more than one "REMF" behind your back, I'd say). While the Iraq occupation is certainly no picnic (compared to your little turkey shoot), it pales behind the horrors of the Revolutionary War, the Civil War, WWI and WWII. Those were existential threats (more or less) to the republic, yet in none of those did the folks in charge think that, just to "win" (in spite of having a bigger military dollarwise than the next five largest countries combined), they had to take the procedures and legal "shortcuts" that you expound on a daily basis here.

Bart: "Under your approach, if we captured a member of the 9/11 cell a day before the attacks, we could not hold and interrogate him as an enemy combatant involved in an attack on our country because the United States did not have any active battlefields."

First, the "planes operation" on 9/11 was conducted by a Special Operations unit of an enemy army in Afghanistan that had declared war on the US, but the US had not recognized this state of war. Under US domestic law there is no state of war, and thus no enemy combatants, until Congress acts. After 9/18 and the AUMF, such persons could be held as enemy combatants, as al Marri subsequently was (he arrived on 9/10 but was captured three months later) and Padilla was (he arrived the following May and was captured when the plane landed). However, since a state of war is required to hold enemy combatants, you are right that on 9/10 none of the hijackers could have been placed in military custody and they would therefore have to be held by the FBI as criminals.

There is no requirement that an enemy combatant be captured on a battlefield or even overseas (Quirin and Padilla). There is, however, a requirement that they be enemy soldiers or spies in time of war. In order for the Boumediene group to qualify, they would have to have visited Afghanistan and gone through military training (as Padilla and al Marri did), then gone to Bosnia on a military mission under al Qaeda orders. We know that al Qaeda claimed to be sending soldiers to fight in Bosnia and Chechnya, but there is nothing in the narrative to suggest that any of the Boumediene group are known to be part of that cadre. Rather, they appear to have been citizens and residents of Bosnia that have never visited Afghanistan.

If today 19 kids from Cleveland are arrested and charged with planning tomorrow to hijack four airliners and crash them into buildings, and we have tapes of them planning to do it, and they were influenced by al Qaeda on the web, and they gave money to al Qaeda charities, then they still cannot be placed in military custody and are not enemy combatants because they never went overseas and joined an enemy army. There are lots of really dangerous people who are not enemy combatants just because they are dangerous.

I appreciate your honesty. You accept the consequences of your positions without the unserious snarking of arne's spam above.

1) You do raise an interesting argument about whether you can capture and hold enemy combatants prior to the enemy sneak attack which starts the war. I would respond that the war started as soon as the planning started to prosecute the war.

If you can arrest a civilian defendant for the crime of conspiracy at the planning stages, I see no reason why we cannot consider ourselves at war with a military enemy during the planning stages for a war.

Even if you believe that the enemy gets a free first attack before we can treat him like an enemy, al Qaeda had been attacking the United States since 1993. We had been at war for nearly a decade before 9/11.

2) Lakmar Boumediene and the five others in the "Algerian Six" are Algerians who "emigrated" to Bosnia during the height of the civil war there. The only Arabs who were emigrating to Bosnia during that bloodbath were Jihadis. They were later naturalized as Bosnian citizens.

The United States had these men under human and electronic surveillance for months. One of the Six, Saber Lahmar, had a father in law working in the US Embassy when the US intercepted a call to Lahmer about an imminent attack on the US Embassy. State took this seriously enough to shut down their embassy and demand that the Bosnians deal with these men.

Based on information provided by the US, the Bosnian police arrested five of the Algerian Six, stripped them of the citizenship and attempted to deport them back to Algeria. Surprise, surprise, the Algerians do not want any part of these Jihadis and said no to the Bosnians.

Suddenly, the Bosnian federal prosecutor intervened and told the Bosnian Supreme Court that there was no evidence against the men and the Court ordered them released. However, the Bosnian police handed them over to the US military rather than release them on the streets of Bosnia again.

The Six were transported to Gitmo and provided with CSRTs in 2004. Unclassified summaries of the allegations against four of the men indicate extensive telephone traffic with Afghanistan just after 9/11, possession of telephone numbers of other al Qeada terrorists. However, much of the evidence remains classified.

Since then, the US has tried to convince Algeria without success to take the men and keep them under surveillance. Algeria continues to refuse to take them back. I wonder why?

Bart: In the week after 9/11 Congress struggled with a resolution. Although the defense of the US was their highest goal, they were more practically constrained by a different factor. Al Qaeda had declared war on us not once, as would be required by international law, but twice as is required by Sharia. Then they had attacked military targets (the USS Cole). However, every insurance policy ever sold has an exclusion for Acts of War. The insurance industry, led by Warren Buffet, stated that it intended to honor policies written for southern Manhattan, but only if Congress did not make it inescapable that this attack was an Act of War. So they passed the AUMF.

The exact legal status of the war is, by design, a bit muddy. Congress would prefer that it started on 9/18 and 9/11 to avoid the political flack. So there is a disconnect between reality and the formalisms.

International law only requires that one party declare war. After that, they are free to use military force. US law requires that Congress act, and in this case when Congress did act they left some intentional ambiguity about dates.

The holy Koran imposes an obligation on every Muslim to struggle against evil. Normally this is an internal struggle, but when they feel that Islam is threatened it can become an armed struggle. However, a struggler, or Mujahadim, is not a soldier of a state, government, or prince. He is a soldier of God himself. He can become part of an organized army (by going to Afghanistan and becoming trained) or he could travel directly to Bosnia. He is equally dangerous and deadly in both cases, but only in the latter case is he legally a soldier (or spy) and not just a civilian terrorist. If he joined an army, he can be held by the military as an enemy soldier. If not, then he is only subject to the criminal justice system, even when you are at war with an army that believes the same as he.

If you can arrest a civilian defendant for the crime of conspiracy at the planning stages, I see no reason why we cannot consider ourselves at war with a military enemy during the planning stages for a war.

Conspiracy requires the commission of an "overt act".

The U.S. plans for wars all the time, but one would be hard pressed to say they had waged war (or conspired to do so) until they have committed an overt act.

But I'd note that Congress has the power to declare war. It could quite reasonably be argued that until such time as they do so, there can be no "enemies" and no "prisoners of war". If "Bart" thinks differently (or thinks things should be different), he ought to ask that the Constitution be amended.

2) Lakmar Boumediene and the five others in the "Algerian Six" are Algerians who "emigrated" to Bosnia during the height of the civil war there. The only Arabs who were emigrating to Bosnia during that bloodbath were Jihadis.

Case closed. They were Ay-Rabs (a/k/a "camel jockeys" or "sand-n*gg*rs"). How can we reasonably argue against such an strong assertion? I dunno, why not place the "burden of proof" on us to refute the allegation? Oh ... right ... "Bart" wants to deny them any neutral forum or any reasonable ability to actually do so.....

Ummmm, like, you know, "other 'enemy combatants'"? Bootstrapping our targets, perchance? "Friend of a friend is a friend, friend of my enemy is also my enemy?"

Yep, I have in my possession the telephone number of another "Terra-ists": to whit, the White House switchboard. Not only that, but I bet that Dubya has Osama's telephone address too. Does the "Six degrees of Kevin Bacon" rule make me a Terra-ist too?

Perhaps there was a reason the Bosnian courts found the evidence insufficient.

So fine. Present this evidence in court, and allow the detainees to explain or refute these incontrovertibly damning claims. That's the differnece between an adversary system, and a Star Chamber.